Overtime or Employee Abuse?

With the slow economy, more employees in South Florida may be finding themselves working longer hours and taking on extra tasks in order to keep their jobs. When does the pressure to work longer and harder cross the line into flat out employee abuse?

Today, guest Blogger James Pinkert, managing partner of the Pinkert Law Firm, a South Florida-based firm specializing in defense and prosecution of over time wage claims, banking and lending litigation, weighs in on this hot topic.

What can employees do if they believe they are being treated unfairly? And what steps can employers take to ensure that they are in compliance and are protected against any claims against them?

For both, the first step is education. Employees must understand the components of the law, its application in their circumstances, and what recourse they have if they believe violations occur. Employers similarly must become familiar with the law, and work to make sure their managers, employee supervisors, and employees are well informed.

Facing severe financial challenges many employers are asking more from their employees. They may ask their executives and managers to work in the evenings, on weekends and vacations. While that is unfortunate, when the same practice extends to hourly workers and other non-exempt employees, an unfortunate situation quickly becomes a violation of the law. Employees also face their own financial pressures, and fearing being fired, so they are hesitant to complain about working overtime.

Here is a basic overview of what both sides should know: employers who are covered under theFair Labor Standards Act (FLSA) must provide overtime pay, at a rate of time and a half per hour, to all non-exempt employees, both hourly and salaried, who work more than 40 hours in one week. The exempt employee category, (those who are not entitled to overtime) includes most managers, supervisors, executives, live-in domestic help, and – believe it or not – over-the-road truck drivers, who are regularly required to work beyond 40 hours in a week in order to complete a particular delivery cycle. While managers are exempt, just having the title of manager does not put you outside of the overtime requirements; a manager under FLSA is an employee that makes discretionary decisions such as hiring and firing.

If an employee believes they may have a claim, they should contact an attorney to see if they in fact qualify under FLSA.

Fortunately, there are steps that employees can take. First, it is important to know that employees can go back up to two years to collect unpaid overtime. Even if they have since lost their jobs, they can take action against a former employer, as long as the time worked in question is within the past 24 months. Second, employees should understand that once they make a credible allegation, the employer has the burden to refute it. Finally, the FLSA includes critical protection for employees that makes taking legal action more affordable. The law says that if an employee wins in an action for overtime pay, the employer must pay all attorneys fees.

For employers, there are important steps to take to ensure compliance. First of all, an employer should determine whether they are covered by FLSA. This will depend on whether they are involved in interstate commerce and the company’s annual gross sales. If the employer is covered by FLSA, then they should be aware of the possible ways they may be in violation of the law.

Many employers are actually unaware of the level of overtime pressure exerted within their own companies. In some cases, supervisors down the line may simply be asking an employee to work during their lunch break, and by depriving them of that hour, they are essentially requiring overtime employment under the law. Unfortunately, a lack of awareness of the requirements of the law, and a lack of knowledge of the practices of lower-level managers, does not excuse an employer. To protect themselves, employers should institute a clear, written policy on overtime, including a requirement that any overtime work must be approved in writing by management before the work occurs. Some employers have gone even further, creating an outright ban on overtime work, along with a written policy that prohibits employees from eating their lunches at their desks (in order to avoid the overtime via lunch hour work dilemma).

In the end, these are difficult times for all, and perhaps the best way to cope is to stay informed.